Court No. - 73
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9884 of 2021 Applicant :- Sachin Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rahul Kumar Tyagi Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
As per Resolution dated 07.04.2021 of the Committee of this Court for the purpose of taking preventive and remedial measures and for combating the impending threat of Covid-19, this case is being heard by way of virtual mode.
Heard learned counsel for the applicant and learned A.G.A for the State through video conferencing.
The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicant, namely, Sachin Kumar, in Case Crime No.- 042 of 2021, under Section- 363, IPC, Police Station- Khanpur, District- Bulandshahr.
Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
There is allegation against the applicant regarding enticing away a minor girl. There is no material to indicate that the girl is major.
Learned counsel for the applicant has submitted that the victim is not minor but major. The applicant has been falsely implicated in this case. The applicant has married the girl in Arya Samaj Mandir. He is willing to produce the girl before the court.
Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.
In view of the facts and circumstances of the case, it is directed that applicant will produce the girl before the C.J.M., concerned, within a period of three weeks. The C.J.M. concerned will get her medical examination conducted for the purpose of age determination by the C.M.O. concerned record her statement under Section 164 Cr.P.C. The applicant shall be enlarged on anticipatory bail for the period of three weeks initially and on compliance of this order, it shall be extended. On failure to comply this order, anticipatory bail granted to the applicant shall stand cancelled and the police shall be free to arrest the applicant.
In case the victim is found major, she would be free to live with the applicant, in case she is found to be minor then as per the judgment dated 27.01.2021 of this Court in Matters Under Article 227 No. 4804 of 2020 (Pradeep Tomar and Another vs. State of U.P. and Another), it shall be open for the daughter of the informant to acknowledge the marriage or claim it to be void once she attains the age of majority. It would be open for her to go wherever she likes and stay with the applicant or with whomsoever she wants to live after she attains the age of majority. However, if she is found to be minor she will not be allowed to live with applicant and will live with her parents. In case, if any threat to her security from her parents during her minority the C.J.M., concerned will pass appropriate order after ascertaining the correct facts.
In the event of arrest, the applicant shall be released on anticipatory bail for three weeks initially and if he produces the girl before C.J.M. as per this order till cognizance is taken by the court on the police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions:-
(i) The applicant shall make himself available for interrogation by the police officer as and when required;
(ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or to any police officer;
(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. concerned.
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicant.
The applicant is directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress who shall ensure the compliance of present order.
If the victim is found major by the C.M.O and she is willing to live with the applicant, in case of his arrest, applicant shall be enlarged on anticipatory bail in aforesaid crime on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
1. The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
2. The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.
3. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
4. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
5. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.
6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
8. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 28.5.2021 SS